Tuesday, November 25, 2014

Naturally I have been thinking about the grand jury's failure to issue a true bill in the Darren Wilson case. I’ve never done any grand jury work, but as a trial lawyer I know this: a
good way to lose a case is to over-try it. Three months is a long time
for a panel to consider the question of whether probable cause to
believe a crime was committed exists. My former prosecutor friends tell
me that one develops a relationship with a panel, and it is pretty easy
to read their intentions. This could have gone in quick and easy, but
instead it went in long and hard– and now the DA’s office has an
anonymous Grand Jury to stand behind. The smart play would have been to
go for jury nullification at trial, but nobody said they were looking
for smart.

The relevant law here consisted of Missouri’s statute regulating the use
of deadly force by police officers, as modified by Supreme Court
decisions that put limits on how much freedom states can give police to
use such force. On its face, Missouri law still follows the old common law rule that
it’s lawful to shoot and kill a fleeing suspected felon, even if the
suspect doesn’t pose an immediate danger to the police or the public.
That rule was declared unconstitutional by the Supreme Court nearly 30
years ago, but Missouri hasn’t yet revised its statutes to reflect this. Because of that Supreme Court ruling, the grand jury in this case was
instructed that—under current Missouri law—Wilson could have legally
shot and killed Brown only if Wilson “reasonably believed that [Brown]
was attempting to escape by the use of a deadly weapon or would endanger
life or inflict serious physical injury unless arrested without delay,
and [Wilson] reasonably believed that the use of deadly force was
immediately necessary to effect the arrest of the offender,” to quote
the standard jury instruction used in the state.

In the courtroom of honor, the judge pounded his gavel
To show that all’s equal and that the courts are on the level
And that the strings in the books ain’t pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught ’em
And that the ladder of law has no top and no bottom